9911796707
TMI Blog2023 (9) TMI 1379X X X X Extracts X X X X X X X X Extracts X X X X ..... citor General that in the event of any further action in respect of the predicate offence liberty has to be preserved for the Enforcement Directorate for reviving the proceedings. To be noted, this is captured in the third paragraph of the 06.07.2023 order of Hon'ble Supreme Court - this caveat will apply to the case on hand also and therefore when we accede to the prayer in the captioned WP it will clearly be with a similar caveat. The prayer of the writ petitioner answered in the affirmative. - Honourable Mr. Justice M.Sundar And Honourable Mr.Justice R. Sakthivel For the Petitioner : Mr.C.Manishankar, Sr. Counsel for Mr.R.Palaniandavan For the Respondent : Mr.N.Ramesh, Special Public Prosecutor (ED) assisted by Mr.Logesh ORDER M.SUNDAR, J. This order will now dispose of the captioned 'Writ Petition' (hereinafter 'WP' for the sake of brevity, convenience and clarity). 2. This order has to be read in conjunction with and in continuation of earlier proceedings made in the captioned WP when it was listed on 26.06.2023. To be noted, the proceedings/orders made by this Court on 26.06.2023 reads as follows: 'W.P.No.3167 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ......................... (iv) ................................. (v) (a) .................................... (b) ......................................... (c) ........................................ (d) The offence under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence. It is concerning the process or activity connected with such property, which constitutes the offence of money-laundering. The Authorities under the 2002 Act cannot prosecute any person on notional basis or on the assumption that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money-laundering against him or any one claiming such property being the property linked to stated scheduled offence through him.' 3. In the light of the narrative thus far, prima facie case made out. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Choudhary principle [Vijay Madanlal Choudhary and others Vs. Union of Indian and Others reported in 2022 SCC OnLine SC 929] that if a person is finally discharged/acquitted qua scheduled offence there can be no offence of money laundering against him or claiming such property being the property linked to the scheduled offence through him. 7. Learned senior counsel also drew our attention to the counter affidavit of the respondent, more particularly paragraph XI thereat which reads as follows: 'XI. During the investigation a letter dated 14.07.2021 was sent to the Police seeking statement recorded by CCB and evidences collected therein. It was informed in reply vide letter dated 23.11.2021 that case has been closed. Vide the said letter, the order dated 02.07.2021 passed by the Hon'ble Metropolitan Magistrate, Egmore, Chennai was enclosed.' (underlining made by this Court for ease of reference and for emphasis) 8. It was submitted by learned senior counsel that in the light of the certain stated position of the respondent, prayer in the captioned WP has to be answered in the affirmative. 9. In response to the aforementioned argument, Mr.N.Rames ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheduled offence can be regarded as proceeds of crime. The authorities under the 2002 Act cannot resort to action against any person for money-laundering on an assumption that the property recovered by them must be proceeds of crime and that a scheduled offence has been committed, unless the same is registered with the jurisdictional police or pending inquiry by way of complaint before the competent forum. For, the expression derived or obtained is indicative of criminal activity relating to a scheduled offence already accomplished. Similarly, in the event the person named in the criminal activity relating to a scheduled offence is finally absolved by a Court of competent jurisdiction owing to an order of discharge, acquittal or because of quashing of the criminal case (scheduled offence) against him/her, there can be no action for money-laundering against such a person or person claiming through him in relation to the property linked to the stated scheduled offence. This interpretation alone can be countenanced on the basis of the provisions of the 2002 Act, in particular Section 2(1)(u) read with Section 3. Taking any other view would be rewriting of these provisions and disr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce point qua PMLA, the same was considered by Hon'ble Delhi High Court in Emta Coal case ( The Deputy Director, Directorate of Enforcement Vs. Emta Coal Limited Ors., etc., ) where also the facts are similar i.e., where the closure report was accepted by the Trial Court and the question was whether PMLA offence can proceed. In Emta Coal case, as regards 'stand alone offence point', the most relevant discussion is contained in paragraph 16 and the same reads as follows: '16. On the other hand, Mr.Sharma, ld. Counsel appearing for the Enforcement Directorate relies upon paragraphs 281, 290 and 295 of the Vijay Madanlal Choudhary (supra) judgment to argue that irrespective of whether the predicate offence exists or not, unless and until the Trial Court comes to a conclusion that the assets are not proceeds of crime, the attachment orders can continue and the ED can in fact file an independent complaint in such a case. On a query from the Court as to whether there is even a single case where a separate complaint has been registered under the PMLA by the ED without a predicate offence having existed, the ld. Counsel submits that this could be the first c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had already set out that facts in the aforementioned four case laws, PMLA facts are similar to the case on hand i.e., closure of predicate offence in the Trial Court and the question as to whether PMLA offence can proceed. 18. As regards Emta Coal's case, we remind ourselves of the Kunhayammed principle ( Kunhayammed Ors vs State Of Kerala Anr reported in (2000) 6 SCC 359 ) to say that Hon'ble Supreme Court has declined to interfere with the Delhi High Court order which vide paragraph 16 specifically deals with the stand alone offence argument but the Hon'ble Supreme Court has put in a caveat and the caveat is recording of statement of learned Additional Solicitor General that in the event of any further action in respect of the predicate offence liberty has to be preserved for the Enforcement Directorate for reviving the proceedings. To be noted, this is captured in the third paragraph of the 06.07.2023 order of Hon'ble Supreme Court. We respectfully say that this caveat will apply to the case on hand also and therefore when we accede to the prayer in the captioned WP it will clearly be with a similar caveat. 19. Captioned WP disposed of in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
