9911796707
TMI Blog2023 (10) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... and its consequent orders. When such statutory remedies are provided, including an appellate power on facts as well to the High Court, exercising the power under Article 226 of the Constitution of India would be akin to usurping the power of the Appellate Court. Such a procedure is not legally proper or justifiable, unless there are exceptional reasons to do so. The exceptional reason warranting an interference by this Court under Article 226 of the Constitution of India according to Sri. Rohatgi, the learned Senior Counsel is that the attachment could have been effected only to the extent of the percentage of share of the first petitioner in the proceeds of the crime quantified, and any excess is ex-facie a non est. Prima facie the said contention is not tenable - if the proceeds of the crime have emerged or flowed from the business of the firm, then, prima facie, all partners may have joint and several liabilities. Of course, this is an issue which requires detailed deliberation on facts as well as on law. Suffice to state, no exceptional circumstances are made out for an interference under Article 226 of the Constitution of India. Reckoning the nature of conclusion being arrive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Chief Judicial Magistrate, Ernakulam, are under sections 120(b) and 420 of the Indian Penal Code, 1860 apart from various provisions of the Lotteries (Regulation) Act, 1998 and the Lotteries (Regulation) Rules, 2010. It must be mentioned that one Sri. N. Jayamurugan is the fifth accused in the aforementioned case before the Chief Judicial Magistrate. 4. Of the six provisional attachment orders, except for one attachment of Rs. 16 crores, all other attachments are over the properties of the petitioners. 5. Petitioners allege that the proceeds of crime estimated by the ED is Rs. 910,29,87,566/- crores, which estimation is notional, and the attachments have been effected on that basis. It is alleged that the ED had presumed that the proceeds of the crime were generated through a partnership firm by the name 'M/s M.J Associates' in which the first petitioner was a partner having only 51% while Sri. N. Jayamurugan, another accused, was a partner having 49%. The contention raised by the petitioners is that on the estimated amount of Rs. 910.29 crores, only 51% can, even going by the case of the ED, be attributed to the first petitioner. The said 51% would total to only Rs. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i. Jaishankar V. Nair, the learned Standing Counsel, on behalf of the respondents. 9. The significant contention raised on behalf of the petitioners is that the last of the attachment orders dated 09.06.2023 for a value of Rs. 459,07,42,047/- is without any legal basis and palpably arbitrary. According to the learned Senior Counsel, when the complaint filed by the respondents, had alleged that the first petitioner was the beneficiary of only 51% of the alleged proceeds of crime, the ED could not have issued orders of attachment of anything more than the said percentage out of the alleged proceeds of crime. Learned Senior Counsel further submitted that the proceeds of crime were allegedly generated in a partnership firm called 'M/s M.J Associates' in which the first petitioner held only 51%, and that only a sum of Rs. 464,25,23,659/- alone could have been frozen or provisionally attached by the respondents as that of proceeds of crime generated by the petitioners. It was contended that, in issuing Ext. P25, as well as Ext. P21 and Ext. P22 orders, respondents have acted in excess of authority without jurisdiction, and hence the provisional attachment order dated 09.06.2023 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s problems arising out of money laundering. Therefore the PMLA was enacted to deal with various aspects of the crime of money laundering. Removal of tainted money or those derived from selected crimes is an effective mode of combating serious offences. If the proceeds of crime have been transformed or converted into other property or have intermingled with legitimate sources, such proceeds and the assessed value of the intermingled gain assume the colour of proceeds of crime. The PMLA provides as one of its objectives, the confiscation of property derived from or involved in money laundering. 15. Sections 3 and 4 of the PMLA make money laundering an offence punishable with imprisonment, which may extend to 7 years apart from fine. The word money laundering is explained as attempting to indulge or knowingly assisting or being a party or being involved in any process or activity connected with the proceeds of crime. The word proceeds of crime, as defined in section 2(u) of the PMLA, means any property derived or obtained directly or indirectly by any person from any criminal activity relating to a scheduled offence. The word 'person' is defined in section 2(s) as including a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndering. 19. A person aggrieved by an order under section 8 is entitled to approach the Appellate Tribunal as per section 26 of the PMLA. The Appellate Tribunal consists of a Chairman, who is qualified to be a Judge of the Supreme Court or of a High Court. Section 42 of the PMLA provides for yet another appeal to the High Court, including on any question of law or fact. The above mentioned provisions provide for adjudication by an independent and separate authority, followed by an appeal to the Tribunal and then to the High Court, even on facts, indicating that the statute has created a code in itself, vis-a-vis the provisional attachment order. Thus a three-tier remedy is provided under the PMLA itself, as fora to alleviate the grievances of those aggrieved. When such a scheme is provided for under the PMLA, petitioners do have an efficacious alternative remedy. These remedies, available under the statute, cannot be circumvented unless they are entirely ill-suited to meet the demands of the situation. Considering the timelines provided and the nature of authorities created under the PMLA, the alternative remedies cannot be regarded as ill-suited to meet the exigency. Any prejudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first petitioner in the proceeds of the crime quantified, and any excess is ex-facie a non est. Prima facie the said contention is not tenable. Indubitably the complaint filed by ED had quantified the proceeds of crime as Rs. 910.29 crores. First petitioner's share in the partnership firm 'M/s. M.J Associates' is stated to be only 51%. The firm 'M/s. M.J Associates' as well as the other partner Sri. Jayamurugan are both accused in the money laundering case. The proceeds of crime are alleged to have emanated from the firm where the first petitioner is admittedly a partner. Section 25 of the Indian Partnership Act, 1932 creates a joint and several liability on all the partners for all acts of the firm. Therefore if the proceeds of the crime have emerged or flowed from the business of the firm, then, prima facie, all partners may have joint and several liabilities. Of course, this is an issue which requires detailed deliberation on facts as well as on law. Suffice to state, no exceptional circumstances are made out for an interference under Article 226 of the Constitution of India. Reckoning the nature of conclusion being arrived at in this writ petition, the question ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
