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TMI Blog2023 (1) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... he offence. I do not find any infirmity in the impugned Judgment of conviction by the trial Court. Judgment of conviction under predicate offence is also affirmed in Criminal Appeal no.326/,327/ and 328/ pending before this Court and pronounced by a separate Judgment today. Sentence - HELD THAT:- It is a settled principle that criminal law generally adheres to the principles of proportionality in sentencing. Imposition of sentence without considering its effect on the social order in many cases can render the criminal adjudication as an exercise in futility. Appellant in the present case was none other than an elected representative of the people, who was reposed with faith to discharge his constitutional obligations with the highest degree of probity. Unfortunately, power blinded his wisdom and he indulged in rampant corruption by acquiring movable and immovable property much beyond his known sources of income. The proceeds of crime under a grand design and various contrivances, were projected as untainted by the process of money laundering. The nature of crime, post held by the appellant, does not justify any leniency in sentencing. On the point of sentence, considering the gravi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,409,420,423,424,465/120 B of IPC and section 11/13(2) r/w 13(1)(e) of the PC Act, 1988 for possession of disproportionate assets by the accused MLA's/Ex-Minister Anosh Ekka and Hari Narayan Rai . During the pendency of the case, further investigation was taken up by the CBI under the direction of this Court passed in W.P.(PIL) No.4700 of 2008 and WP (PIL) No.2252 of 2009, CBI vide order dated 04.08.2010 wherein direction was given to the CBI to take up investigation of Vigilance P.S. Case No.26/2008. The CBI after re-registering the case as R.C. No.04(A)/2010-AHD-R(B) submitted Charge-sheet no.02/12 dated 27.01.2012 was submitted under Section 109 IPC and 13(2) read with Section 13(1)(e) of the P.C. Act, 1988 against all the accused persons. 5. As per the prosecution case, during check period from 10.3.2005 to 31.3.2009 Anosh Ekka had acquired assets worth Rs 57.01 Crore, disproportionate to his known sources of income against the pre-check assets of Rs 10,48,827/-. The property so acquired were invested in land as well as deposits in NSC's KVP etc and by floating a construction company in the name of M/s Ekka Construction Pvt. Ltd and got it registered in the Rural Works Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the year 2005 to 2008. It is alleged that during this period by misusing his official position as a public servant, he acquired huge movable and immovable properties either in his name or in the name of his family members, relatives and associates. 10. In nutshell, accused Anosh Ekka had acquired assets Rs.57.01 Crore disproportionate to his known sources of income against the pre-check asset of Rs.10,48,827/- during the check period 10.03.2005 to 31.03.2009. 11. Assets were acquired during the check period by Sri Anosh Ekka in his own name and in the names of his wife Smt. Menon Ekka, M/s Ekka Construction Pvt. Ltd., Sri Jaykant Bara (cousin of Smt. Menon Ekka and Director of M/s Ekka Construction Pvt. Ltd.), Deepak Lakra (Co-villager and Director of M/s Ekka Construction Pvt. Ltd.), Ibrahim Ekka (brother), Gidiyon Ekka (brother), Roshan Minz, nephew, M/s Motorist Inn Pvt. Ltd. (purchased in the names of Smt. Menon Ekka and Sri Jaykant Bara as directors), etc. After Sri Anosh Ekka became a minister, a company was floated in the name and style of M/s Ekka Construction Pvt. Ltd. Under directorship of Smt. Menon Ekka and Jaykant Bara. Later, Smt. Menon Ekka dissociated from the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gidiyon Ekka's returns did not reflect sufficient income justifying purchase of the flat. 14. A Scorpio vehicle was purchased in the name of Sri Ibrahim Ekka and huge sum was paid for obtaining choice registration number for this vehicle. This apart, substantial land worth Rs. 13 lakh had been purchased in his name, in Simdega. The income tax returns of Sri Ibrahim Ekka did not justify these acquisitions and he could not show from which account he withdrew the amount equivalent to the cost price of the car. 15. Five NSCs, each for Rs. 1 lakh, were purchased by Sri Anosh Ekka in the name of Jaykant Bara, Subhashi Ekka, Menon Ekka, Gidiyon Ekka and Ibrahim Ekka on a single date i.e. 30.3.2007. Similarly, five KVPs, each for Rs. One lakh, were purchased by him in the name of Sandesh Ekka, Irin Ekka, Menon Ekka, Nisha Minz and Nishant Minz on a single date i.e. 19.7.2008. Smt. Menon Ekka happens to be the nominee in respect of NSCs purchased in the name of Jaykant Bara and her sister Raien Minz happens to be the nominee in respect of the KVP purchased in the names of Sandesh Ekka, Irin Ekka and Menon Ekka. 16. Huge investments were made by Sri Anosh Ekka in the Post office in the na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 229 dt. 8.8.2011 of Valuation Officer, Income Tax, Ranchi, regarding valuation of house in Hinoo, Doranda, Ranchi. 2006-09 1,80,20,000/- Time Deposit Passbook of A/c No. 150101502 in Doranda PO. 12.3.07 3,60,000/- Time Deposit Passbook of A/c No. 150101504 in Doranda PO. 12.3.07 6,00,000/- Time Deposit Passbook of A/c No. 150101505 in Doranda PO. 12.3.07 6,00,000/- Time Deposit Passbook of A/c No. 150101506 in Doranda PO. 12.3.07 6,00,000/- Time Deposit Passbook of A/c No.130102484 in Doranda PO. 7.12.06 2,00,000/- Time Deposit Passbook of A/c No. 130102403 in Doranda PO. 5.10.06 1,50,000/- Time Deposit Passbook of A/c No. 150101507 in Doranda PO. 13.3.07 96,000/- Time Deposit Passbook of A/c No. 150101503 in Doranda PO. 12.3.07 2,50,000/- TD Passbook of A/c No. 130102506 in Doranda Post Office. 22.12.06 1,00,000/- TD Passbook of A/c No. 130102507 in Doranda Post Office. 22.12.06 1,00,000/- TD Passbook of A/c No. 130102508 in Doranda Post Office. 22.12.06 1,00,000/- TD Passbook of A/c No. 130102509 in Doranda Post Office. 22.12.06 1,00,000/- TD Passbook of A/c No. 130102510 in Doranda Post Office. 22.12.06 1,00,000/- TD Passbook of A/c No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28,400/- Balance in Joint SB A/c No. 380302010156036 in Union Bank of India, Doranda, Ranchi. 7,023/- In the name of M/s Ekka Construction Pvt. Ltd., Directors- Smt. Menon Ekka, Jayakant Bara (now Deepak Lakra in place of Smt. Menon Ekka) Tata Safari Car No. JH06H0001 for purchased from M/s. Kraft Auto Private Limited. This acquisition was financed by M/s. Hindustan Credit Corporation, Main Road, Ranchi. Loan was repaid within a year 12.4.2008 10,45,520/- Toyota CAMRY Car No. JH 20A 0001 purchased from M/s BEBBCO Motors Pvt. Ltd., Adityapur, Jamshedpur 11.4.07 21,25,000/- Four Tipper vehicles purchased from M/s JMA Stores Pvt. Ltd. (Reg. No. JH 09H 6277, JH 05S 6277, JH 10N 6277, JH 11D 6277) Feb'07 35,95,044/- Hero Honda M. Cycle No. JH01Y3988 purchased from M/s Shyama Automobiles Pvt. Ltd., Ranchi 21.5.08 33,824/- Tractor No. JH01R9377 purchased from M/s Fogla Auto Pvt. Ltd., Ranchi 2.3.07 3,49,911/- Verna CRDi (Sx) Car Regd. No. JH 02L 0001 purchased from M/s Republic Hyundai, Line Tank Road, Ranchi. 10.3.08 8,07,867/- Balance in CD account No. 11443844053 at SBI, Simdega. 2,34,94,021/- Balance in current account No. 51991010000160 at Oriental Bank o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3053005 in Sub Post Office, HSG1, Simdega 29.8.08 2,26,000/- TD Passbook of A/c No. 333053006 in Sub Post Office, HSG1, Simdega 29.8.08 2,00,000/- TD Passbook of A/c No. 130102493 in Doranda Post Office. 13.12.06 7,50,000/- TD Passbook of A/c No. 130102502 in Doranda Post Office. 22.12.06 1,00,000/- TD Passbook of A/c No. 130102503 in Doranda Post Office. 22.12.06 1,00,000/- TD Passbook of A/c No. 130102504 in Doranda Post Office. 5.10.06 1,00,000/- TD Passbook of A/c No. 130102505 in Doranda Post Office. 22.12.06 1,00,000/- In the name of Subhashi Ekka Application for purchase of NSC (Reg. No. 4988) from Simdega Post Office 30.3.07 1,00,000/- In the name of Ibrahim Ekka Certified copy of 1 registered sale deed regarding purchase of land at Simdega received vide letter No. 116 dt. 14.6.2011 of Distt. Sub Registrar, Simdega. 16.11.06 13,65,048/- JH 01V 0001 Scorpio Car purchased from M/s Auto Plannate Industry Pvt. Ltd., Dhanbad. 15.1.2008 9,81,836/- Application for purchase of NSC (Reg. No. 4991) from Simdega Post Office 30.3.07 1,00,000/- In the name of Sandesh Ekka, son Application for purchase of KVP (Reg. No. 10575) from Simdega Post ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of this nature cannot be accepted. 21. Huge expenditure had been incurred by Sri Anosh Ekka on education of his wards and payment of LIC premium. Also, investigation revealed that Sri Anosh Ekka entered into an agreement to purchase plots of land in Namkum, paid part amount to the sellers and spent huge amount in erecting a boundary wall around the land. 22. Smt Menon Ekka w/o Anosh Ekka and Shri Jaykant Bara, cousin brother of Smt Menon Ekka had no income of their own. M/s Sandesh Constructions, proprietorship firm in the name of Shri Jaykand Bara was the benami firm of Anosh Ekka. Property acquired in the name of Smt Menon Ekka and Jaykant Bara, were attached u/s 5(1) of the PMLA vide Provisional Attachment Order dated 28.7.2014 were nothing but the illegal income of Anosh Ekka. 23. The accommodation entry was made in the books of accounts of M/s Ekka Construction Pvt. Ltd. and M/s Motorisit Inn Pvt. Ltd. The property acquired in the name of private limited company was acquired from the proceeds of crime earned by Anosh Ekka. 24. Shri Sandesh Ekka and M/s Irin Ekka, being the minor son and daughter of Sri Anosh Ekka, had no income of their own. Property acquired in their na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al rivalry. The defence witnesses have stated different amount given to his sons and daughters in their birthday party and gifts given on other occasions. 31. The defence has examined 71 witnesses and has adduced the following documents into evidence:- 1. Valuation report of constructed house of Menon Ekka at Airport Road, Hinoo, Ranchi- Exhibit-A 2. Certified copy of judgment and decree of Money Suit No.36/12-Exhibit-B 3. Certified copy of valuation of house of accused Anosh Ekka in front of Simdega Police Station-Exhibit-C 4. Certified copy of deposition of witnesses Sanjay Kumar (P.W.-54) in R.C.04(A)/2010-AHD-R(B)-Exhibit-D 32. The learned Trial Court while considering the assets as declared by Anosh Ekka and his wife Smt. Menon Ekka in their income tax return filed in the nomination for Assembly Election in the year 2005 (Exhibit 72, 72/1, 78 and X/25) computed the total asset I. Cash- Rs.50,000/- + Rs.22,000/- =Rs 72,000 II. Bank financial institution, non-company deposits, NSS & Postal Savings - Rs.827 + Rs.7,00,000 + Rs.20,000/-=Rs7,20,827 Gold--- Rs.56,000/- III. Financial resources eg NSS postal savings etc. of dependents-- Rs.2,00,000/- Total- Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheduled offence and the prosecution complaint is filed before the competent court for cognizance. 40. In absence of submission of any charge-sheet with respect to the scheduled offences, the investigation and subsequent complaint could not have been filed. 41. As the investigation by way of ECIR was instituted by the Directorate of Enforcement without making any attachment, such prosecution was not maintainable in absence of any order of attachment. 42. On the point of sentence, it is argued that in imposition of 16 years imprisonment for both scheduled offence as well as offence for money-laundering was beyond the mandate of the provision under Section 427 Cr.P.C. 43. Reliance has been placed on the following authorities on behalf of the appellant: a. M/s Satyam Computers Services Ltd Vs. Deputy Director, Directorate of Enforcement, passed by High Court of Hyderabad and approved by Hon'ble Supreme Court in Directorate of Enforcement Vs Satyam Computer Services b. Obulapuram Mining Company Pvt. Ltd Vs Joint Director, Directorate of Enforcement, Govt of India the judgment of the High Court of Karnataka approved in Special Leave to Appeal (Crl) No(s) 4466/2017 c. 2014 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned as a result of criminal activity (a scheduled offence). It would be an offence of money-laundering to indulge in or to assist or being party to the process or activity connected with the proceeds of crime; and such process or activity in a given fact situation may be a continuing offence, irrespective of the date and time of commission of the scheduled offence. In other words, the criminal activity may have been committed before the same had been notified as scheduled offence for the purpose of the 2002 Act, but if a person has indulged in or continues to indulge directly or indirectly in dealing with proceeds of crime, derived or obtained from such criminal activity even after it has been notified as scheduled offence, may be liable to be prosecuted for offence of money-laundering under the 2002 Act - for continuing to possess or conceal the proceeds of crime (fully or in part) or retaining possession thereof or uses it in trenches until fully exhausted. The offence of money-laundering is not dependent on or linked to the date on which the scheduled offence or if we may say so the predicate offence has been committed. The relevant date is the date on which the person indulges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th respect to the argument that ECIR was instituted in the year 2009 and at that time the maximum fine provided under Section 4 of the Act, 2002 was only Rs.5,00,000/-, whereas in the present case a fine of Rupees Two Crore has been imposed, it is argued that the accused/appellant continued to hold the proceeds of crime till December, 2014 although it was investigated in the year 2009. The offence by its very nature is continuing. The prosecution complaint dated 11.12.2009 has been marked as Exhibit 33, the supplementary prosecution complaint was filed on 09.03.2012 (Exhibit 33/1) and thirdly, on completion of investigation, the second supplementary complaint was filed on 31.03.2015 (Exhibit 76). In the meantime, the accused was enjoying the properties until a part of property was attached and the order of attachment was confirmed vide order dated 11.05.2010 with respect to properties valuing Rs.976500/- (Exhibit 73/1). Subsequently, further attachments were made with respect to the properties valuing Rs.33,88,22,167/-. However, even thereafter, the accused was in possession and dealing with the further proceeds of crime in his possession which necessitated attachment of further pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is prospective cannot properly be called retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing." The offence of money - laundering involves attempting or indulging in or knowingly being a party or involving in any process or activity connected with the proceeds of crime including its conversion, concealment, possession, possession or use and projecting or claiming it as untainted property. It cannot be said that to launch prosecution of an offence under section 4 of PMLA, the predicate offence from which the proceeds of the crime originated should also have been committed after PMLA came into force. It is the laundering aspect of proceeds of crime which is the mischief, which the PMLA targets. Section 3 criminalizes the activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming of tainted proceeds of crime and not the generation of proceeds of crime from the predicate crime. Therefore, if the predicate offence is committed before it was included in the scheduled offence and steps were taken subsequently to project it as untainted, it cannot be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crime is material for criminality under PMLA. It is therefore, the date of laundering which would be relevant and not the date when the scheduled offence was committed. 54. The first FIR was registered on 25.10.2008, being FIR No.26/2008. On the basis of FIR No.26/2008, the Directorate of Enforcement, Patna registered an ECIR vide Case No. ECIR/01/PAT/09/AD dated 04.09.2009. The prosecution complaint and supplementary prosecution complaints and attachment orders of proceeds of crime, have been filed by the Enforcement Directorate after 1.6.2009 when the amendment in the PMLA came into force making Section 13(1)(e) r/w section 13(2) of the PC Act as scheduled offence. 55. The learned Court below has discussed at length the manner in which construction company in the name of M/s Ekka Construction Pvt. Ltd. was floated in the name of his wife Smt. Menon Ekka and brother-in-law Jaikant Bara, both were Directors of the Company and got it registered with R.E.O Department, Government of Jharkhand on 06.01.2006 (Exhibit 38) and floated another Company M/s Motorist Inn through Smt. Menon Ekka and Jai Kant Bara which was used to place the proceeds of crime in these companies. The appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sional attachment, Section 5 of the Act, specifically provides that if he has reason to believe that the person in possession of proceeds of crime, is likely to conceal transfer or deal in any manner which may frustrate any proceeding relating confirmation of proceeds of crime, he may provisionally attach the property which subsequently is required to be confirmed by the Adjudicating Authority within a period of 180 days as provided under Section 8 of the Act. The Trial Court has power to either release the property or direct for confiscation of the property. 58. Lastly, On the point of sentence and on the question of fine imposed by the Trial Court of Rupees Two Crore, in the instant case, the accused/appellant was continuing to hold the proceeds of crime upto December, 2014 which shall be apparent from the fact that though the investigation commenced in the year 2009 but the proceeds of crime was invested in different properties. The initial complaint was filed on 11.12.2009 which has been marked as Exhibit 33. The first supplementary complaint was filed on 09.03.2011 (Exhibit 33/1) and on completion of investigation, the second supplementary complaint was filed on 31.03.2015 (E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt term of imprisonment would normally commence at the expiration of the imprisonment to which he was previously sentenced. 62. It is a settled principle that criminal law generally adheres to the principles of proportionality in sentencing. Imposition of sentence without considering its effect on the social order in many cases can render the criminal adjudication as an exercise in futility. Appellant in the present case was none other than an elected representative of the people, who was reposed with faith to discharge his constitutional obligations with the highest degree of probity. Unfortunately, power blinded his wisdom and he indulged in rampant corruption by acquiring movable and immovable property much beyond his known sources of income. The proceeds of crime under a grand design and various contrivances, were projected as untainted by the process of money laundering. The nature of crime, post held by the appellant, does not justify any leniency in sentencing. 63. On the point of sentence, considering the gravity of offence and the position of responsibility as held by the appellant/accused, the sentence of imprisonment and fine needs no interference by this Court. The le ..... 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