9911796707
TMI Blog2021 (6) TMI 428X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation, the C.B.I., Hyderabad, filed charge sheet for the aforesaid offences. On receipt of documents from C.B.I. like F.I.R., charge sheet etc., the respondent authorities made enquiries and having found that there is a prima facie case under the Prevention of Money Laundering Act, 2002 (for short "the P.M.L. Act") and as Section 120-B read with Section 420 of I.P.C. and Section 13 of the Prevention of Corruption Act are the scheduled offences under P.M.L. Act, the respondent authorities have registered Enforcement Case Information Report (ECIR) No.08/HZO/2011, dated 30.08.2011 and took up the investigation. During the course of investigation, summons were issued under Section 50 of the P.M.L. Act to several persons and recorded their depositions, obtained financial accounts and bank statements of M/s. Stylish Holmes, Tirumala Ranga Rao, M/s. Southend Projects and Foundations Private Limited, N.Sunil Ressy and Koneru Rajendra Prasad and also from other persons, who were associated with the transactions and their voluntary statements. From the statements of the accused and the documents collected during the course of investigation under P.M.L. Act, according to the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings against the petitioner in C.C.No.6 of 2012. Against the orders passed in Criminal Petition No.3935 of 2016, a Special Leave Petition (SLP (Crl.) No.8186 of 2018) has been filed and same is pending before the Apex Court, but no stay has been granted. He also submits that the allegations against the petitioner are materially the same as in the C.B.I. charge sheet filed in C.C.No.6 of 2012. The allegations against the petitioner are that he received USD 1,40,000 from Challa Suresh and USD 2,50,000 from P.S.Parthasarathy, who have purchased villa plots as part of excess amount received. It is alleged that the petitioner knowingly received proceeds of crime and is still holding some of it. He further submits that the petitioner is a resident of Dubai since 1992 and is engaged in the business of real estate, trading and mining in the UAE and he has no business with any companies based in India or with M/s. Emaar PJSC, Dubai. The petitioner received the amounts from Parthasarathy and Challa Suresh for investment in the Dubai real estate market and thereafter returned the said amounts subsequently. The fact that the money was received for investment in the real estate market is clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h No.17 of the order, this Court specifically recorded a finding that the petitioner had no knowledge of the alleged offence. The order of this Court passed in Criminal Petition No.3935 of 2016, has been challenged before the Apex Court and no stay of any nature has been granted, as such the findings of this Court in Criminal Petition No.3935 of 2016 are still in force. In view of the fact that the allegations against the petitioner in the C.B.I. charge sheet and the allegations against the petitioner in the complaint made under P.M.L. Act are identical and the complaint under P.M.L. Act is ought to be quashed as this Court has clearly recorded a finding that the allegations do not show that the petitioner had any knowledge of the nature of amount deposited in his account. He also submits that the contention of the respondent that the offence under P.M.L. Act is a distinct offence from the predicate offence does not support the case of the respondent in any manner. The contention that the offence under P.M.L. Act is an independent offence cannot take away from the fact that this Court vide order, dated 05.01.2018 in Criminal Petition No.3935 of 2016 has specifically recorded a find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 15.06.2019 in S.C.No.1 of 2019. He also submits that the complaint made under P.M.L. Act, taken at its face value, shows that the petitioner had no knowledge of the money deposited in his account to be the proceeds of crime. Assuming the allegations in the complaint to be true, no offence under the P.M.L. Act is made out against the petitioner. It is further submitted that there are no new factual allegations in the complaint made under P.M.L. Act that are different from the allegations in the C.B.I. charge sheet that has been quashed by this Court. In the complaint made under P.M.L. Act only a bare allegation is added that the petitioner is the recipient of proceeds of crime 'knowingly'. Mere usage of the word 'knowingly' is not sufficient to attribute knowledge to the petitioner in the absence of any statement or material in the complaint made under P.M.L. Act that shows as to how the petitioner is alleged to have knowledge of receipt of proceeds of crime. In the absence of such allegations and material attributing knowledge to the petitioner, the proceedings against the petitioner are liable to be quashed and the petitioner ought not to be forced to undergo the rigmarole of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 164 of Cr.P.C. in the C.B.I. case. It is submitted that even the aforesaid statements do not attribute any knowledge to the petitioner regarding the alleged proceeds of crime and cannot form the basis of proceeding against the petitioner for the offence of money laundering. Further, this Court, while quashing the C.B.I. proceedings against the petitioner, specifically dealt with the aforesaid allegations and statements made by Parthasarathy, Challa Suresh and Tummala Ranga Rao under section 164 of Cr.P.C., and gave a categorical finding that the same would not be sufficient to say that the petitioner was privy to any such transaction. Therefore, it is not open for the respondent to rely on 164 Cr.P.C. statements recorded by C.B.I. Further, the very fact that Challa Suresh and Parthasarathy, who are alleged to have paid proceeds of crime to the petitioner, have not been implicated as accused in the complaint shows that the petitioner has been wrongly implicated as an accused without any basis and for the sole reason that he is the son of accused No.7. It is further submitted that the sole basis for the respondent authorities to raise allegations with respect to the afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintain status quo. This Court in M/s. Tata Coffee Limited v. Government of Andhra Pradesh Manu/AP/1477/2013 held that mere granting of an interim stay order by the appellate Court would not wipe out the ratio/law declared by the High Court. Therefore, the alleged offence took place before 2009 at which time Section 120-B read with Section 420 of I.P.C. were not scheduled offences under the P.M.L. Act, the offences cannot be retrospectively applied to the petitioner. It is further submitted that the contention of the respondent that the offences under P.M.L. Act are continuing and hence ought to be applied retrospectively is entirely misinterpreted and contrary to the law declared by this Court in Tech Mahindra v. Joint Director, E.D. Manu/AP/2921/2014. The aforesaid decision of this Court has become final as the Special Leave Petition (SLP(Crl) No.010250 of 2017) has been dismissed by the Apex Court, vide order dated 08.12.2017. In view of the judgment of the Apex Court in S.Kasi v. State 2020 SCC Online SC 529, the decision of the coordinate Bench of the High Court would be binding on another coordinate bench. Reiterating the allegations made against the petitioner in the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as an accused in the prosecution complaint under P.M.L. Act. Further, the association of the petitioner with T.Ranga Rao of M/s. Stylish Homes Private Limited is well established and accepted by the petitioner too. The provisions of P.M.L. Act are independent and having self-contained code, which has been strengthened by catena of decisions pronounced by various Courts of law. In support of his contentions, he relied on the following judgments:- 1. Smt. Soodamani Dorai v. The Joint Director of Enforcement, Chennai and others W.P.No.8383 of 2013 of Madras HC 2. J.Sekhar v. The Directorate of Enforcement Crl.O.P.Nos.24200 of 2017 of Madras HC 3. Neeharika Infrastructure Private Limited v. State of Maharashtra and others (4 supra) 4. Gautam Kundu v. Directorate of Enforcement (5 supra) 5. M/s. V.G.N.Developers v. The Deputy Director, Directorate of Enforcement (6 supra) 6. Radha Mohan Lakhotia v. Deputy Director, P.M.L.A., Directorate of Enforcement, Ministry of Finance (7 supra) 7. Sachin Narayan v. Income Tax Department and another (8 supra) 8. Babulal Verma v. Enforcement Directorate (9 supra. This Court has given fastidious consideration to the points ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose, a close look at the meaning and import of the expression 'money laundering' has to be referred. According to Section 2 (p), 'money laundering' has the meaning assigned to it in section 3. Section 3 of the PML Act, 2002 reads as under:- Section 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 with the [proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] 1. Substituted by the Prevention of Money-laundering (Amendment) Act, 2012 (No. 2 of 2013) w.e.f. 15.02.2013 for the following: - "proceeds of crime and projecting." it as untainted property shall be guilty of offence of money-laundering. [Explanation 2. Inserted by Finance (no. 2) Act, 2019: For the removal of doubts, it is hereby clarified that-- (i) a person shall be guilty of offence of moneylaundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also important to note that in the Complaint itself the ED has asserted that a detailed reference is made to the Charge sheet filed by CBI at various places and at paragraph No. 10 a reference is made to the 'investigation under PMLA, 2002' as below: "11. It is humbly submitted that on receiving documents from CBI like FIR, Charge Sheet etc., the Directorate of Enforcement, Hyderabad made enquiries and having found that there is a prima facie case under PMLA, 2002 and as Sec. 120B read with Sec. 420 of IPC and Sec. 13 of PC Act are the Scheduled offences under PMLA, 2002, Directorate of Enforcement has registered ENFORCEMENT CASE INFORMATION REPORT (ECIR) No. 08/HZO/2011 dt. 30.08.2011 (Annexure-A4) and took up the investigation." 12. During the investigation summonses were issued under Section 50 of the Act to several persons and recorded their depositions, obtained Financial Accounts and Bank statements of M/s Stylish Holmes, Shri Tummala Ranga Rao, M/s Southend Projects & Foundations Pvt. Ltd. Sri N. Sunil Reddy, Sri Koneru Rajendra Prasad and also from other persons who were associated with the transactions and their voluntary statements ..." It is therefore, as rightly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t matter, there is nothing for what is discussed supra. The learned Special Judge also did not go through and evaluate the prosecution material covered by the final report in taking cognizance for respective offences against him as A-13." So far as the other offences of Criminal breach of trust and cheating (sections 409 and 420 IPC) is concerned, this Court has recorded the following observations: "14. From reading of the material supra, there is thus no offence of criminal breach of trust and cheating much less with any proof of entrustment and any deception since inception of any contract between M/s Emaar and M/s Stylish Holmes in so far as against the petitioner-A13 separately concerned, but for subject to offence of criminal conspiracy made out if any with other accused under sections 120B & 107 (2) IPC r/w 10 Evidence Act to petitioner A13 as privy for their committing those offences alleged from any agreement or abetment/instigation from the allegations in the charge sheet that though rate of selling the villa plots was fixed by M/s Emaar at Rs. 5, 000/ per sq. yd. as per the instructions of Shri Koneru Rajendra Prasad -A6, Shri T. Ranga Rao-A14 as Director of M/s Styli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fences' is concerned, can be applied to an act committed prior to amendment? A plain reading of the definition of "money laundering" as indicated in Section 2 (p) would indicate, it has not undergone any change and it has the same meaning as assigned to it under Section 3. Whereas Section 2 (y) which defines "schedule offence" has undergone amendment namely, sub-clause (ii) was substituted by Act No.21 of 2009. For the words "thirty lakh rupees or more" was substituted by the words "one crore rupees or more". It is the case of ED as set out in the impugned Complaint that the money was remitted to the account of the petitioner in Dubai, on 12.4.2005 and 9.8.2007 from Mr. Suresh and Mr. Parthasarathy respectively and therefore, the offence of money laundering, so far as the petitioner is concerned was committed prior to the year 2009. Sec. 120 B, sec. 409 and 420 I.P.C are made 'scheduled offences' for the purpose of Section 3, only from the year 2009. The question whether for the acts amounting to offences punishable under sec. 120B, 409 and 420 I.P.C prior to 2009, the PML Act that was amended in 2009 can be applied. This question was dealt with by the Delhi High Court in Arun Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.4466 of 2017 dated 22.3.2017 and in the case of Directorate of Enforcement vs. Arun Kumar Mishra in SLP (Crl.) Nos.10018 and 10019 of 2015 dated 11.1.2016 and in the case of Adjudicating Authority (PMLA) and others vs. Ajay Kumar Gupta and others in SLP (Crl.) Diary No.4968 of 2018 (arising out of impugned final judgment and order dated 13.7.2017 in Crl.OP Nos.10500 of 2017 and 10497 of 2017 passed by this Court and also the judgment of Hon'ble Division Bench of High Court of Delhi in the case of Directorate of enforcement vs. Mahanivesh Oils and Foods Pvt Ltd (LPA No.144 of 2016) and C.M. No.8046 of 2016 dated 30.11.2016." In the case of Prahlad Krishna vs. The State of Bombay, AIR 1952 Bom 1 (DB) the court observed that immunity is supposed to be provided to a person from being accused of the offence laid down under the present law which had been committed by him before such enactment. Clause 1 of Article 20 of the Constitution of India guarantees right against the operation of ex post facto laws. A seven Judges' Bench of the Supreme Court in the case of Jawala Ram vs. The State of Pepsu 1962 SCR (2) 503 (CB) made it clear that it is only in case of criminal laws th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The argument advanced by the learned Senior Counsel for the Petitioner that there is no commission of 'schedule offence' by the petitioner to proceed under Sections 3 and 4 of P.M.L. Act and the Complaint filed by the Respondent against the petitioner, being Accused No. 12 does not indicate any material to prosecute him for the offences under the Prevention of Money Laundering Act, 2002 (as amended) is accepted. 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. The learned Assistant Solicitor General ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
