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TMI Blog2023 (11) TMI 1033X X X X Extracts X X X X X X X X Extracts X X X X ..... lusion that the Special Designated Court for trying offences under PMLA would be the Court which would try the Scheduled offences in the factual circumstances of the present case. As such the order dated March 24, 2021 passed by the learned Metropolitan Magistrate, 4th Court, Calcutta, do not call for any interference and the said order is hereby affirmed. Application disposed off. - HON BLE JUSTICE TIRTHANKAR GHOSH For the Petitioners : Mr. Ayan Bhattacherjee, Mr. Indrajit Adhikari, Mr. Amitabrata Hait, Mr. Suman Majumder. For the E.D./Opposite Party No. 2 : Mr. Vipul Kundalia, Mr. Anurag Roy, Ms. Uneaza Ali. JUDGMENT TIRTHANKAR GHOSH, J:- The present revisional application has been preferred by the petitioners challenging the order dated March 24, 2021 passed by the Learned Metropolitan Magistrate, 4th Court, Calcutta in connection with G.R. Case No. 175 of 2012 (arising out of Shakespeare Sarani P.S. Case no. 12 of 2012) under Sections 420/467/468/471 of Indian Penal Code wherein the learned Magistrate was pleased to allow the application dated 12.12.2018 filed by the Complainant/Enforcement Directorate and directed for appearance of all the accused persons for committing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 08/12 dated 12.10.2012 Charge sheet no. 09/12 dated 30.11.2012 are pending at before the Ld. 21st Metropolitan Magistrate, Kolkata. The matter of charge Sheet No. 11/12 dated 31.12.2012 is pending at 22nd Metropolitan Magistrate, Kolkata. Two separate FIRs viz. FIR No. 138 dated 18.05.2011 FIR No. 12 dated 11.01.2012 were also registered by the Kolkata Police on the basis of complaint filed by Lalit Kumar Singhal Vice President, Yes Bank Ltd. 19, Camac Street, Kolkata-17. and J. K Ramakrishna Rao, Regional Collection Manager- East, DCB Bank Ltd. Gariahat Road Kolkata respectively against the Directors of M/s Prime Pulses Ltd., Ms Prime Impex Ltd. Subsequently cases were transferred to Kolkata Police Banking Fraud Section (BFS) and two separate charge sheets bearing no. 122/2016 dated 24.08.2016 before Ld. Chief metropolitan Magistrate, Calcutta and charge sheet bearing no. 27/17 dated 21.03.2017 before Ld. Chief Metropolitan Magistrate, Calcutta were filed by the Kolkata Police (BFS). Thus there were 10 separate charge sheets have been filed in this case for causing total principal loss of Rs. 447,44,08,331/- plus overdue interest (Total Principal Loss till date after taking recov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial CBI Judge, 1st Court at Bichar Bhavan, Calcutta (Special Designated Court under the Prevention of Money Laundering Act, 2002), in terms of Section 44 (1) (c) of Prevention of Money Laundering Act, 2002, for the conduct of trial of both the scheduled offences as well as offences under Prevention of Money Laundering Act, 2002 in terms of Section 43(2) of the Prevention of Money Laundering Act, 2002 .. Mr. Bhattacharya, learned Advocate appearing for the petitioners challenged the order dated 24th March, 2021 thereby committing the case relating to the schedule offence to the Special Court designated under PMLA, 2002 by stressing on the issue that the language of the statute do not mandatorily direct that the transfer of the case under the schedule offence to the Special Court is automatic. In order to elaborate his argument learned Advocate assigned the following reasons: (i) As per the un-amended provisions, the Scheduled offence and the offence under the provisions of PMLA, 2002 could only be tried by the Special Court constituted under PMLA (vide Section 44(1)(a) of the Act). The amended provisions came into force on February, 15 2013 and the word only appearing in Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be read as may ; (c) Section 44(1)(a) has to be read in conjunction with Section 44(1)(c); (d) Transfer of a case by the regular court to the special court is optional and the said issue has to be considered regard being had to various factors viz., the nature of the regular case, number of common accused, distance between the regular court and the special court etc. (e) Since this provision is an enabling one, an order passed under Section 44(1)(c) has to satisfy the test of application of mind; (f) No obligation can be foisted upon the regular court to transfer a case on the request of ED under Section 44(1)(a). Mr. Kundalia, learned Advocate appearing for the Enforcement Directorate relied upon the provisions of Section 44 of PMLA, 2002 and submitted that it is a settled position of law that the scheduled offence case is to be committed to the special Court which has taken cognizance of the complaint of the offence of money laundering. Referring to the relevant provisions of Section 44 of PMLA it was submitted that the object of including clauses (a) and (c) of Section 44(1) of PMLA, along with the explanation as introduced by the Finance (No. 2) Act, 2019 was to enable the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a situation where there is no complication. Section 44(1)(a) lays down the most fundamental rule relating to territorial jurisdiction, by providing that an offence punishable under Section 4 of the PMLA and any scheduled offence connected to the same shall be triable by the Special Court constituted for the area in which the offence has been committed. It is relevant to note that Section 44(1)(a) uses the expression offence in three places in contradistinction to the expression scheduled offence used only once. This usage is not without significance. In all three places where the word offence alone is used, it connotes the offence of money-laundering. The place where the expression scheduled offence is used, it connotes the predicate offence. By prescribing that an offence punishable under Section 4 of the PMLA and any scheduled offence connected to the same shall be triable by the Special Court constituted for the area in which the offence has been committed, Section 44(1)(a) makes it crystal clear that it is the Special Court constituted under Section 43(1), which will be empowered to try even the scheduled offence connected to the same. 27. After mapping out/laying down such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Special Court, the Court trying the scheduled offence shall commit it to the Special Court trying the offence of money-laundering. 39. Once this combined scheme is understood, it will be clear that in view of the specific mandate of clauses (a) and (c) of sub-section (1) of Section 44, it is the Special Court constituted under PMLA that would have jurisdiction to try even the scheduled offence. Even if the scheduled offence is taken cognizance of by any other court, that court shall commit the same, on an application by the authority concerned, to the Special Court which has taken cognizance of the offence of money-laundering. This answers the first question posed before us. Learned Advocate for the ED also relied upon KA Rauf Sherif Vs. Directorate of Enforcement Ors. Reported in 2023 SCC OnLine SC 375 and submitted that the law on the subject was reiterated by the Hon ble Apex Court. Emphasis was laid on Section 71 of the PMLA by the learned Advocate appearing for the ED for rebutting the contentions advanced by the petitioner, particularly with regard to the overriding effect and the examples relied upon by the petitioner relating to Section 209 and Section 259 of Cr.P.C. By ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t after conclusion of investigation, if no offence of money-laundering is made out requiring filing of such complaint, the said authority shall submit a closure report before the Special Court; or] [(c) if the court which has taken cognizance of the scheduled offence is other than the Special Court which has taken cognizance of the complaint of the offence of money-laundering under sub-clause (b), it shall, on an application by the authority authorised to file a complaint under this Act, commit the case relating to the scheduled offence to the Special Court and the Special Court shall, on receipt of such case proceed to deal with it from the stage at which it is committed. [ Explanation . For the removal of doubts, it is clarified that, (i) the jurisdiction of the Special Court while dealing with the offence under this Act, during investigation, enquiry or trial under this Act, shall not be dependent upon any orders passed in respect of the scheduled offence, and the trial of both sets of offences by the same court shall not be construed as joint trial; (ii) the complaint shall be deemed to include any subsequent complaint in respect of further investigation that may be conducted t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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