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TMI Blog2022 (5) TMI 988X X X X Extracts X X X X X X X X Extracts X X X X ..... both sides, there are no doubt in mind that the petitioner is not entitled to get any relief in his favour. Even though the learned Chief Judicial Magistrate granted only partial discharge of the charges levelled against the petitioner, he has stated that by virtue of the order, the substratum of proceedings initiated by the respondents against him has been lost. There is no legal or factual basis in the contention. It is true that offences under the Lottery (Regulation) Act or Lottery (Regulation) Rules are not predicate offences under the PML Act. Similarly, offences under Sections 120B and 420 of the IPC were inserted by amendment dated 01.06.2009. It is also clear that the partnership firm in which the petitioner was a partner had been in the lottery business for the period from 31.12.2007 to 13.06.2010. That means, at the time when he had left the lottery business on 13.06.2010, offence under Sections 120B and 420 of the IPC were brought in as scheduled offences under the PML Act - the specific case of the CBI is that the first accused Santiago Martin, the proprietor of Future Gaming Solutions India Private Limited had sold tickets to the third accused, M/s. Future Gaming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sivakasi in Tamil Nadu for sale by the 1st accused Santiago Martin and his aids. It may be true that the petitioner had been in the field only for three years, the respondents have reasons to believe that he was part of the larger conspiracy at least during the period between 31.12.2007 to 13.06.2010. By that time, the offences under Sections 120B and 420 IPC were incorporated in the schedule of offence. It appears that the petitioner wants to prolong the matter one way or the other. After failing to get any relief from the Madras High Court he has approached this Court raising almost same contentions, which are barred by principles of issue of estoppel and cause of action estoppel. Petition dismissed. - WP(C) NO. 13990 OF 2021 - - - Dated:- 5-5-2022 - HONOURABLE MR. JUSTICE K.HARIPAL Petitioner: By Advs. S. Sreekumar (SR.) Biju Varghese Abraham K. M. Aneesh N.R.R. Arun Natarajan Shashank Devan Respondents: BY ADVS. Sri. P. Vijayakumar, ASG OF India Sri. Suvin R. Menon, CGC JUDGMENT This is a writ petition filed under Article 226 of the Constitution seeking the following reliefs:- a) Declare that the Respondents 2 and 3 herein have no jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case and thus render justice. 2. Petitioner is the fifth accused in C.C. No. 218/2015 pending before the Chief Judicial Magistrate s Court, Ernakulam which arose from the final report filed by the CBI alleging offences under Sections 120B and 420 of the Indian Penal Code, Sections 4(d), 4(f) and 9 read with 7(3) of the Lotteries (Regulation) Act, 1998, for short LR Act and Rules 3(5) and 4(5) of the Lotteries (Regulation) Rules, 2010, for short LR Rules . The petitioner is the partner of M/s. M.J. Associates, Palakkad. At the instance of the State of Kerala, 32 crimes were registered against accused persons including the petitioner in different police stations. Later, investigation of all the crimes were handed over to the CBI at the instance of the State. After investigation, the CBI referred 23 crimes, a compiled final report was laid in seven crimes from which C.C. No. 218/2015 arose. Investigation is yet to conclude in the remaining two crimes. 3. According to the petitioner, on 06.08.1999 by an agreement, the Government of Sikkim had appointed M/s. Martin Lottery Agencies Limited, re-named as M/s. Future Gaming Hotels and Services India Private Limited, present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd other accused persons and thereby defalcated large sum of money, the said final report was laid in which charge No. 1 is a general charge setting out criminal conspiracy between the petitioner and M/s. Martin Lottery Agencies Limited. According to him, no allegation of cheating punishable under Section 420 of the IPC has been made against the petitioner. The other specific charge against the petitioner is in charge No. 8 where he had allegedly committed offence punishable under Section 120B of the IPC besides under Sections 4(d) and 4(f), 9 read with 7(3) of the LR Act and Rules 3(5) and 4(5) of the LR Rules. 4. According to the petitioner, he had no role in the alleged violation of the LR Act and Rules. Thus, the Government of Sikkim refused to give consent under Section 6 of the Delhi Special Police Establishment Act to investigate any case against him. 5. On the basis of the final report filed before the Chief Judicial Magistrate, Ernakulam respondents have initiated the following proceedings/orders against the petitioner:- a) ECIR.No.KCZO/4/2014 dated 19.08.2014 issued by the third respondent. b) Provisional Attachment Order No. 2/2017 in ECIR/4/KCZO/2014(AZ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stayed the further proceedings in the case pending before the Chief Judicial Magistrate s Court. Pursuant to Ext. P15 order, petitioner sought adjournment of the proceedings in OC No. 695/2017 pending before the first respondent. By Ext. P17, the first respondent has informed that there is no stay of proceedings initiated by the respondents under the PML Act and there is no impediment in continuing the proceedings before the adjudicating authority. 7. According to the petitioner, by the order of discharge passed by the Chief Judicial Magistrate, proceeds of crime stand totally eliminated. The Chief Judicial Magistrate has clearly found that offence under Sections 4(d) and 4(f) of the LR Act and Rule 3(5) of the LR Rules are not maintainable. That means, the petitioner is not in possession of any proceeds of the crime within the meaning of Section 2(u) of the PML Act. Therefore, it is idle for the respondents to proceed with the adjudicatory process and orders of attachment of properties which have no connection whatsoever with the alleged commission of crime. Hence, he has approached this Court with the aforestated reliefs. 8. The learned Central Government Counsel appearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made it abundantly clear that they have not sustained any loss, so that offence under the LR Act or LR Rules will not lie against him. Moreover, offences under the LR Act are not scheduled offences. According to the learned counsel, Sections 120B and 420 of the IPC were incorporated in the statute only on 01.06.2009, so that the petitioner cannot be made liable for any predicate offence and assets proceeded against are not proceeds of the crime. Inviting my attention to Ext.P8 order, he pointed out that the Chief Judicial Magistrate has discharged him of offences under the LR Act and LR Rules, which means the allegation against him that his assets are proceeds of the crime is completely unfounded. 12. According to the learned counsel, even though the Madras High Court had dismissed the writ petition, it is evident that it had no jurisdiction to deal with the matter. Once it is found that it had lacked territorial jurisdiction to entertain the writ petition, a finding rendered regarding the maintainability of the writ petition also vanishes. Referring to the decisions reported in Arun Kumar Mishra v. Directorate of Enforcement [2015 SCC OnLine Del 8658], Sushil Kumar Katiyar v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , printing of Sikkim Lottery tickets from a non security press not empanelled by RBI/IBA, not returning the unsold tickets back to the Sikkim Government, not returning undisbursed prize amounts to the Sikkim Government and manipulation of data showing unsold prize winning tickets as sold and claiming the same from Sikkim Government, and cheating the Government of Sikkim by entering into an agreement containing covenants contrary to the LR Act and Rules and thus deceived the Sikkim Government in not receiving the full sale proceeds of the lottery tickets and A-1 by practically conducting the Sikkim Government Lotteries in the name of M/s.FGSIPL, committed the offence punishable U/s 120B, 420 IPC read with Section 4(d), 4(f), 7(3), 9 of the Lotteries (Regulation) Act, 1998 and 3(5), 4(5) of Lotteries(Regulation) Rules, 2010. 15. Charge No. 1 is generally against all accused persons, seven in number. As regards the petitioner, charge No. 8 reads thus:- CHARGE 8 That A-5 Shri N. Jayamurugan, Partner of M/s. M.J. Associates, Palakkad during 2007 to 2010 in furtherance of the Criminal Conspiracy narrated in Charge No. 1, sold and distributed Sikkim Lottery tickets vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Additional Sessions Judge. It is true that the petitioner had preferred Special Leave to Appeal (Crl.) No. 3521/2021 against Ext.P13 order before the Hon'ble Supreme Court and obtained an interim stay of further proceedings of C.C.No.218/2015 pending before the Chief Judicial Magistrate. However, the learned Central Government Counsel has produced a copy of the order dated 08.11.2021 in Special Leave to Appeal (Crl.) No. 3521/2021 whereby the Special Leave stands dismissed. In other words, the finding of the learned Additional Sessions Judge holds the field. 17. It is also the common case that pursuant to the filing of Ext.P1 charge sheet before the Chief Judicial Magistrate by the CBI, Ext.P2 ECIR was launched against the petitioner and others where he is the fifth accused. Following the same, Ext.P3 order of attachment has been passed on 09.02.2017 whereunder numerous items of properties of the petitioner stands attached provisionally. Thereafter, original complaint has been preferred before the adjudicating authority under the PML Act, Ext.P4, seeking adjudication under Section 8 of the PML Act. While so, the fourth accused, John Kennedy approached the Madras High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y partial discharge of the charges levelled against the petitioner, he has stated that by virtue of the order, the substratum of proceedings initiated by the respondents against him has been lost. There is no legal or factual basis in the contention. 21. As mentioned earlier, in Ext.P8 order, the learned Chief Judicial Magistrate had found that offence under Sections 4(d), 4(f) of the LR Act and Rule 4(5) of the LR Rules will not lie against him. It is made absolutely clear that the petitioner will have to face the ordeal of trial with respect to the remaining part of the charge. There are offences under Sections 120B, 420 of the IPC, Section 9 read with 7(3) of the LR Act and Rule 3(5) of the LR Rules remaining against the petitioner which has been made clear by the learned Additional Sessions Judge in revision. This order has been confirmed by this Court when a Crl.M.C. was moved by the petitioner challenging the correctness of the order of the Court in revision. The Special Leave to Appeal filed against that order stands dismissed. 22. It is true that offences under the Lottery (Regulation) Act or Lottery (Regulation) Rules are not predicate offences under the PML Act. Sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Additional Sessions Judge has noticed that the business was being done by the petitioner in the State of Kerala, that public money had gone into the hands of the petitioner, that cheating was ultimately done against the public who paid for the lottery tickets, that all these aspects are matters of evidence to be considered at the time of trial. The learned Single Judge of this Court has observed as follow:- 15. I find it difficult to accept the contention. Other than the Government of Sikkim, the Government of Kerala and the accused, the major stakeholders are the public who have purchased the tickets under the belief that the lottery was being conducted strictly in accordance with the provisions of the Act and the Rules. By conducting the lottery in violation of the provisions, the public, who spent money for purchasing the lottery tickets, was deceived. Therefore, irrespective of the fact that the Government of Sikkim has no complaint, the offence under Section 420 is attracted. Moreover, if during the course of trial, it is found that the officials with the Government of Sikkim are also part of the conspiracy, the trial court can exercise its power under Section 319 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite law that when an alternative and appellate remedy is in- built in the statute, resorting to invoke the inherent and discretionary jurisdiction conferred upon this Court under Article 226 of The Constitution of India, is not proper. As mentioned above, there is an alternative remedy provided under Section 8 of the PMLA before the Adjudicating Authority. The writ petitioners ought to have approached the Adjudicating Authority and questioned the validity and/or correctness of the PAO passed by the respondent. Further, this Writ Court, under Article 226 of the Constitution of India, is not conducting any roving enquiry on the disputed questions of facts to render a finding as to whether the reasons assigned in the impugned PAO are valid or not. Therefore, we are of the opinion that when alternative remedy is available, the present Writ Petitions are not maintainable. The hastiness with which the petitioners have filed the present writ petitions before this Court, is not proper, when there is an alternative remedy provided under Section 8 of PMLA. 28. It is the well settled proposition of law that when an alternative and equally efficacious remedy is open to a litigant, he shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the petitioner has an effective alternative remedy which ought to have been availed before rushing to the court with Writ Petition. 30. The PML Act is a self contained code. It provides sufficient safeguards preventing excessive acts from the side of the Director. If prima facie materials are made out, the appropriate authorities can be approached with a provisional order of attachment as provided under Section 5 of the PML Act followed by adjudication for confiscation of the proceeds of the crime. Section 8 provides for adjudication of complaint preferred under Section 5(5) or applications made under Section 17(4) or Section 18(10) of the PML Act. Section 26 provides for examining the legality and correctness of the order passed by the Adjudicating Authority. Section 42 of the PML Act ensures further appeal to the High Court. The petitioner has no case that procedural safeguards are violated and he is being proceeded against arbitrarily. Thus he has approached the Madras High Court at the threshold hastily, overlooking the procedures provided in the PML Act. When the Writ Petition was dismissed finding that it is not maintainable, he has approached this Court a second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking evidence. 33. There is also force in the contention that when offence under Section 420 IPC is charged, it presupposes existence of property; without any property, such an offence will not lie. The proceeds of crime ought to have been attached by the respondents. The Additional Sessions Judge in revision found that the offence under Section 420 IPC is also attracted, which has been considered and confirmed by this Court in Ext.P13 order. That order stands confirmed by the Apex Court. Once this Court held that Section 420 IPC is attracted, now, in this Writ Petition, it cannot be said that that offence was committed only prior to the amendment. 34. To put it in other words, predicate offence under Sections 120B and 420 of the IPC continues even after withdrawal of the petitioner from business deals. Persons cheated include general public. As far as act of cheating is concerned, there is no distinction between the general public and the Government. 35. Referring to the decisions reported in Municipal Corporation of Greater Mumbai v. Pankaj Arora (Secretary) and Others [(2018) 3 SCC 699], Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others [(1998) 8 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent with the Sikkim Government; then he himself acts as the distributor and nominates another as stockist; again a partnership is created himself acting as one of the partners. After large sum of money was siphoned off, when proceedings are initiated, challenges are being made in different High Courts. Resultantly, they could successfully stall the proceedings for over six years. Malpractices and fraud have been committed on a massive scale involving huge sum of money. There are reasons to believe that they have acted hand in glove with unknown employees of the Sikkim Government. Even though it was necessary that the lottery should have been printed either in Government press or in presses recognised by Indian Bank Association, all lotteries were printed in some private press in Sivakasi in Tamil Nadu for sale by the 1st accused Santiago Martin and his aids. It may be true that the petitioner had been in the field only for three years, the respondents have reasons to believe that he was part of the larger conspiracy at least during the period between 31.12.2007 to 13.06.2010. By that time, the offences under Sections 120B and 420 IPC were incorporated in the schedule of offence. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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