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TMI Blog2022 (2) TMI 1126X X X X Extracts X X X X X X X X Extracts X X X X ..... the economy as well. Chanakya once said that the king who steals from the Rajkosh (treasury-public money) should be punished by the harshest sentence for he not only steals from an individual but the citizens of the Nation. It is high time where we as a society should take charge of it and sharp tools like PMLA to eradicate corruption once and for all. It is our responsibility that no one can take advantage of grey areas and loopholes. The provisions of the PMLA indicate that it is a Special Act and is a complete code itself, which does not come into the purview of other criminal law statutes. The provision of Code of Criminal Procedure do not prevail over the PMLA except in exceptional circumstances. The documents on record would show that the investigation under PMLA, 2002, is at very initial stage and, though, the Petitioner has been exonerated in other proceeding, but, at this stage, it would not be proper to arrive at conclusion that no offence under PMLA, 2002 is made out. The reply filed by the respondent authorities would show that under the PMLA, they have only got two opportunities to inquire from the Petitioner. The Petitioner is bound to submit his statements, docum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Pursuant to the said EOW FIR dated 19.02.2010, the Sub Zonal Office Nagpur of the Enforcement Directorate (ED), on 10.01.2011, registered an Enforcement Case Information Report bearing No. ECIR/01/NGR/2011. On 22.03.2010, a charge sheet was issued to the Petitioner by the State Government framing charges on the basis of Preliminary Report submitted by the Income Tax Department. The Petitioner responded to the charge sheet by way of filing requisite documents stating factual position and on being satisfied and after careful examination of law, on 13.03.2012, the State Government dropped the departmental proceeding against the Petitioner on same set of facts and allegation raised in the Preliminary Report and exonerated him from all the charges. 5. On 11.01.2012, after completion of search assessment, Assessing Officer, Income Tax, issued order/letter raising a tax demand of ₹ 13,464/- against the petitioner. This order of the Assessing Officer was challenged by the Petitionerbefore the Commissioner of Income Tax (Appeals) and vide order dated 31.05.2012, the Commissioner of Income Tax (Appeals) deleted the additions made by the Assessing Officer from the income of the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Adjudicating Authority. Further case of the prosecution is that addendum ECIR has been registered for the predicate offence registered by CBI, EOU-VII, New Delhi for commission of offence under Section 120-B, 420 and 471 of IPC and Section 13(2) and 13(1)(d) of the P.C. Act, bearing RC No. RC- 1(E)/2010/EOW-VII dated 04.01.2010. After receiving the Original Complaint dated 18.12.2020, the learned Adjudicating Authority issued a Show Cause Notice dated 07.01.2021 to the Petitioner without referring its own order dated 14.05.2018. On 14.09.2021, the High Court of Delhi stayed the operation of the Provisional Attachment Order dated 27.11.2020 in a Writ Petition (C) No.3938/2021 preferred by M/s Prime Ispat Ltd. which is also a party along with the petitioner in the Provisional Attachment Order dated 27.11.2020 on the ground that PAO-II has been issued on the same set of allegation and FIRs have already been adjudicated by the Authority in Provisional Attachment Order dated 04.04.2017. 8. Learned counsel for the Petitioner submits that after thorough investigation for more than six years and after exonerating by the CIT (Appeals) and ITAT in the Income Tax proceedings, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.2010, but no offence has been made out in the said RC against the Petitioner. He further submits that the prosecution launched under PMLA, 2002 is nothing but to harass the Petitioner for the reason that the State of Chhattisgarh refused to grant sanction for prosecution under Section 19 of the PC Act as well as under Section 197 of Cr.P.C. vide letter dated 11.07.2014, 03.08.2016 and 04.10.2017. Further, the State of Chhattisgarh, where the Petitioner was in employment, vide letter dated 04.06.2019 informed the Central Government that the Petitioner was neither having any financial power at the relevant time nor he played any role in the alleged irregularities, therefore, when no prosecution can be launched in the predicate offence, the prosecution under PMLA cannot be proceeded. Further submission of learned counsel for the Petitioner is that addendum ECIR has been registered for the predicate offence for RC No.2172017A0004 on 18.02.2017 by CBI, ACU-V, AC-II, New Delhi for commission of offence under Section 120-B of IPC and Section 8 of P.C. Act, and the said FIR was challenged before this Hon'ble High Court in WP(Cr.) No.75/2017 and vide order dated 19.12.2019, the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since the Petitioner has been exonerated from all the charges in the proceedings before the ITAT vide order dated 09.01.2017, in departmental inquiry vide order dated 13.03.2021 and also by the Adjudicating Authority vide order dated 14.05.2018, wherein degree of proof is much lesser than that of criminal proceeding and when the Petitioner has been found to be innocent, no proceedings on the same set of allegations can be launched by the respondents. In support of this contention, learned counsel referred the decision of Honl'ble Apex Court in the matter of Radheshyam Kejriwal V. State of West Bengal 2011 3 SCC 581 , wherein the Appellant was exonerated under Section 51 of Foreign Exchange Regulation Act, 1973. However, the Enforcement Directorate on the same allegation filed complaint against the Appellant therein for prosecution under Section 56 of the Act before the Metropolitan Magistrate. The Hon'ble Apex Court, in para 31 held that : 31. It is trite that the standard of proof required in criminal proceedings is higher than that required before the adjudicating authority and in case the accused is exonerated before the adjudicating authority whether his prosecuti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation by not appearing against Letters and Summons issued to him by respondent authorities under Section 50(2) (3) of PMLA, 2002 on one pretext or the other. 12. Learned counsel, referring to the recent judgment of High Court of Madras passed on 24.09.2021 in the matter of S.S. Govindaraj V. State bearing Crl. O.P. No.28796/2015, submits that the accused has a right to speedy trial, but must face consequences if responsible for delay. Learned counsel also submits that granting any interim relief to the Petitioner in the instant case would amount to Appellate Court evaluating the material and evidences before the registration of the Prosecution Complaint and the same would be against the view taken by Hon'ble Supreme Court in the matter of State of Rajasthan V. Ashok Kumar Kashyap 2021 SCC Online 314. It is also pointed out by learned counsel for the respondents that during the course of investigation, from 2006-2007 to 2009- 2010, the Petitioner (I.A.S.) abused his position and power and in connivance with his Chartered Accountant namely Sunil Agrawal (proposed accused in the PC) opened as many as 446 accounts in the name of gullible villagers of Kharora, Motimpur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating Authority. The argument of learned counsel for the Petitioner to the extent that the Petitioner has been exonerated from various offences, is not correct as all the orders are pending consideration before the Appellate Authority. The Petitioner is not at all entitled for any relief whatever prayed by him in the application under Section 482 of Cr.P.C. The PMLA is a special Act and certain provisions of PMLA Act are under consideration before the Hon'ble Supreme Court and there is no direction/stay/any adverse finding by it in this regard. It has been also submitted by learned counsel for respondents that the Petitioner was given ample amount of opportunities during investigation and otherwise but his non co-operation throughout the investigation and when he was summoned for statement under Section 50 of PMLA, 2002, very clearly established the modus operandi of the Petitioner to delay the proceedings and then approaching various judicial forums to take benefit on the ground of delay in criminal proceedings, as in the present case. The statement of the Petitioner under Section 50 of the PMLA, 2002 got recorded only on two instances, once when he was in judicial custody ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eds of crime including its concealment, possessions, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money- laundering. Section 4. Attachment of property involved in money-laundering. - [(1) where the Director or any other officer not below the rank of Deputy Director authorised by the Director for the purposes of this section, has reason to believe (the reason for such belief to be recorded in writing), on the basis fo material in his possession, that - (a) any person is in possession of any proceeds of crime; and (b) such proceeds of crime are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this Chapter, he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and eighty days from the date of the order, in such manner as may be prescribed: Provided that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973 (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Court shall, unless the contrary is proved, presume that such proceeds of crime are involved in money-laundering; and (b) in the case of any other person the Authority or Court, may presume that such proceeds of crime are involved in money-laundering. 17. The PMLA , being a Special Act, has provided certain mandatory provisions in order to ensure the effective investigation of the offence of money laundering. 18. The Petitioner, referring to the decision of Radheyshyam (supra), is seeking interim relief in the instant case mainly on the ground that since the Petitioner has been exonerated in the Income Tax cases and respondent authorities did not success before the learned Adjudicating Authority and in Anti Corruption Cases, the impugned ECIR and addendum to ECIR has been registered against him without producing any material to show that there is any change of circumstances or facts. 19. In Radheyshyam (supra), it was held that the standard of proof required in criminal proceedings is higher than that required before the adjudicating authority and in case the accused is exonerated before the adjudicating authority then his prosecution before a criminal court on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbiguous finding that there is no such contravention of the provisions of the Act, it would be unjust for such departmental authorities to continue with the criminal complaint and say that there is sufficient evidence to foist the accused persons with criminal liability when it is stated in the departmental proceedings that ex-facie there is no such violation. The yardstick would, therefore, be to see as to whether charges in the departmental proceedings as well as Income Tax proceeding are identical and the exoneration of the concerned person in the departmental proceedings is on merits holding that there is no contravention of the provisions of any Act. However, the same is subject matter for adjudication at the final hearing of the petition. 23. This Court may now refer to and rely upon the decision of Rohit (supra), wherein Hon'ble Apex Court held in para 18, which reads thus:- 18. The consistent view taken by this Court is that economic offences having deep rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fit, regard being had to the parameters of quashing and the self-restraint imposed by law, may pass appropriate interim orders, as thought apposite in law, however, the High Court has to give brief reasons which will reflect the application of mind by the court to the relevant facts. 16. We have come across many orders passed by the High Courts passing interim orders of stay of arrest and/or no coercive steps to be taken against the accused in the quashing proceedings under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India with assigning any reasons. We have also come across number of orders passed by the High Courts, while dismissing the quashing petitions, of not to arrest the accused during the investigation or till the chargesheet/final report under Section 173 Cr.P.C is filed. As observed hereinabove, it is the statutory right and even the duty of the police to investigate into the cognizable offence and collect the evidence during the course of investigation. There may be requirement of a custodial investigation for which the accused is required to be in police custody (popularly known as remand). Therefore, passing such type of blanket interim orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Article 226 is not to be exercised liberally so as to convert it into Section 438 Cr.P.C. proceedings. It is further observed that on the other hand whenever the High Court finds that in a given case if the protection against pre-arrest is not given, it would amount to gross miscarriage of justice and no case, at all, is made for arrest pending trial, the High Court would be free to grant the relief in the nature of anticipatory bail in exercise of its powers under Article 226 of the Constitution of India, keeping in mind that this power has to be exercised sparingly in those cases where it is absolutely warranted and justified. However, such a blanket interim order of not to arrest or no coercive steps cannot be passed mechanically and in a routine manner. 17. So far as the order of not to arrest and/or no coercive steps till the final report/chargesheet is filed and/or during the course of investigation or not to arrest till the investigation is completed, passed while dismissing the quashing petitions under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India and having opined that no case is made out to quash the FIR/complaint is concerned, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial precedents. It is intellectual truancy to avoid the precedents and issue directions which are not in consonance with law. It is the duty of a Judge to sustain the judicial balance and not to think of an order which can cause trauma to the process of adjudication. It should be borne in mid that the culture of adjudication is stabilised when intellectual discipline is maintained and further when such discipline constantly keeps guard on the mind. 37. It is pertinent to mention here that the Petitionerhas not filed bail application under Section 438 of Cr.P.C. for grant of anticipatory bail, therefore, grant of any protection would override the provisions of Section 438 of Cr.P.C. as such, considering the overall material placed before this Court, diary of the case, I am of the considered opinion that the Petitioneris not entitled to get any interim relief as prayed for by the Petitionerand the interim application is liable to be dismissed. Accordingly, the same is dismissed. 25. Further, Hon'ble Apex Court in the matter of State of T.N. V.N. Suresh Rajani reported in (2014) 11 SCC 709, held in para 29 as under:- 29. ... At this stage, probative value of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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