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TMI Blog2022 (6) TMI 1135X X X X Extracts X X X X X X X X Extracts X X X X ..... f 2003) (Came into force on 1-7-2005). The PMLA seeks to combat money laundering in India and has three main objectives: (I) to prevent and control money laundering, (ii) to confiscate and seize the property obtained from the laundered money; and (iii) to deal with any other issue connected with money laundering in India. It is not in dispute that the tainted money was not obtained by the applicants in discharge of any official duty, the said money has no nexus with the official duty of the applicants and therefore, as per Section 197 of CrPC, there was no requirement for obtaining sanction for criminal prosecution of the applicants. There is no provision under the PMLA Act requiring sanction for criminal prosecution. In this case, in the complaint filed by the ED all the facts as available in case registered by the ACB are mentioned and evidence has also been recorded under Section 50 of PMLA of the applicants by the competent authority. The defence taken by the applicants that they are innocent, under the pressure of Alok Kumar Agrawal they took the money which was seized from them, is a matter of evidence and also depends upon the defence to be taken by Alok Kumar Agrawal during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the 4th Additional Sessions Judge are Alok Kumar Agrawal, Alka Agrawal, Pawan Agrawal and Abhish Swami. 03. As per the prosecution case, accused Alok Kumar Agrawal who was Assistant Engineer, Water Resources Department, Raipur, CG, while working as Incharge Executive Engineer of the said department (Kharang Project), committed financial irregularities and corruption in the tender process and thereby caused wrongful gain to his near relatives and himself which amounts to offence under Sections 3 & 4 of the Prevention of Money. Co-accused Alka Agrawal, wife of the Alok Kumar Agrawal, in order to show the tainted money acquired by her husband as untainted money, used the same for her photocopy/printing shop in the name of M/s Quality Copiers and projected the said tainted money as her income from the said shop whereas during investigation no document relating to income from the said shop was produced by her. 04. Applicants Abrar Baig, Vijay Kumar, Govind Dewangan and B.D.S. Narwariya were subordinate employees of accused Alok Kumar Agrawal and from their possession around Rs.7 crores were seized by Economic Offence Wing. During investigation, they disclosed that the said amount be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Agrawal, Abhish Swami, Radheshyam Agrawal, Smt. Pushpa Agrawal and Smt. Alka Agrawal was filed for the offence under the aforesaid sections. 08. From the scheduled offence arising from the abovementioned case, the Enforcement Directorate (ED) registered ECIR No.RPSZO/03/2015/349, Raipur on 30.3.2015 under Section 3 & 4 of Prevention of Money Laundering Act, 2002 and after taking evidence and collecting materials, a complaint was filed before the 4th Additional Sessions Judge, Raipur, which is the designated Court for money laundering cases. On the basis of material available, the concerned trial Court took cognizance of the offence against the present applicants and other co-accused persons and issued summons to them and therefore, the applicants have filed the instant revision petitions. 09. Learned counsel for the applicants in both the revision petitions submits that there is no sanction obtained from the concerned authority by the respondent for criminal prosecution of the applicants and therefore, the cognizance taken by the trial Court is illegal. Looking to the amount seized from the applicants, they were cited as witnesses in Crime No.5/2015 and examined before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compelled to give evidence against himself. As per evidence recorded before the Special Court (Anti Corruption) by the EoW and further as per the statements recorded by ED during investigation, the same facts were narrated by the applicants and on the basis of statements of the applicants, Alok Kumar Agrawa, who is the main accused in EoW case was prosecuted for offence under Section 13(1)(e), 13(2) of the Prevention of Corruption Act, 1988 and Sections 109, 120B, 420, 467, 468, 471 of IPC. Before the trial Court and before the ED, the applicants in their statements under Section 50 of PMLA stated that the amount seized from them was taken by them from main accused Alok Kumar Agrawal as they were under compulsion, influence and threat by Alok Kumar Agrawal. 11. Learned counsel appearing for applicant Vinod Malewar also submits that in this case, one person namely Hariram Patel also accepted one suitcase and thereafter returned to Vinod Malewar but as per evidence recorded under Section 50 of PMLA, said Hariram Patel was not mentioned as an accused. 12. It is submitted that the statement of objects and reasons to Prevention of Money Laundering Act, 2002 (15 of 2003) recognizes th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt has been authorized to take cognizance upon the prosecution complaint. The applicants in their statements under Section 50 of PMLA have categorically admitted possession of cash belonging to accused Alok Kumar Agrawal. All the applicants were public servants, they ought to have reported the matter to the police or other competent authority if they were forced to keep the illegal money of accused Alok Kumar Agrawal but they kept the same with them for a considerable period. This prima facie shows their ill intention to benefit and facilitate the wrong doings of Alok Kumar Agrawal. They were cleverly maintaining that amount of main accused Alok Kumar Agrawal obtained from the criminal activity of the scheduled offence. He submits that the money seized from the applicants have no nexus with their official duty. He submits that under Section 2(u) of the PMLA, an explanation is also given for removal of doubts whereby it is clarified that "proceeds of crime" including property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c servants.- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013]- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government. [Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression "Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l take cognizance of an offence punishable under [sections 7, 11, 13 and 15] alleged to have been committed by a public servant, except with the previous sanction [save as otherwise provided in the Lokpal and Lokayuktas Act, 2013]- (a) in the case of a person [who is employed, or as the case may be, was at the time of commission of the alleged offence employed] in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government; (b) in the case of a person [who is employed, or as the case may be, was at the time of commission of the alleged offence employed] in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government; (c) in the case of any other person, of the authority competent to remove him from his office. [Provided that no request can be made, by a person other than a police officer or an officer of an investigation agency or other law enforcement authority, to the appropriate Government or competent authority, as the case may be, for the previous sanction of such Government or authority for tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), (a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby; (b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice; (c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.] 4. Punishment for money-laundering.-Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words "which may extend to seven years", the words "which may extend to ten years"had been substituted." 20. Section 24 of PMLA deals with burden of proof in any proceedings relating to proceeds of crime under this Act, which reads as under: "24. Burden of proof.-In any proceeding relating to proceeds of crime under this Act,- (a) in the case of a person charged with the offence of money-laundering under section 3, the Authority or Court shall, unless the contrary is proved, presume that such proceeds of crime are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicants is that one Hariram Patel, who was involved in the present crime, was not made accused in this case. The said Hariram Patel has now died and even otherwise, non-impleadment of Hariram Patel as an accused has nothing to do with the accusation against the applicants, they have to prove their innocence or false implication on the merits of the case during the course of trial and therefore, such a defence is not available to the applicants. 23. As regards the judgments relied upon by learned counsel for the applicants, I have gone through those decisions and am of the opinion that they are of no help to the applicants at this stage and the same can be considered on the merits of the case. Similarly, the citations submitted by the respondents' counsel are also to be considered at the time of trial after collection of entire evidence. 24. Thus, considering the overall facts and circumstances of the case, this Court is of the opinion that the tainted money seized from the applicants has no nexus with their official duties and as such, there is requirement of obtaining sanction for criminal prosecution in the money-laundering case and further, no such provision is there in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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