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TMI Blog2024 (2) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the opposite party turned approver. If the case for a scheduled offence fails, the case under PLMA Act also fails, as the case under PLMA Act has been prima facie made out of the materials and evidence on record in the case in respect of a scheduled offence (herein registered by the CBI). Without the evidence provided by the opposite party as an approver, the case under PLMA would have not been made out and thus the opposite party is entitled to the relief provided under the law to an approver, not only in the case registered in respect of a scheduled offence but also in respect of all cases which are dependent on the materials and evidence in the case registered in respect of a scheduled offence, in which the accused has turned approver. Admittedly, the opposite party herein turned an approver in the case registered by CBI in respect of scheduled offences and was examined by the Court under Section 306(4)(a) of Cr.P.C. as a witness. Thus keeping with the observation of the Supreme Court in VIJAY MADANLAL CHOUDHARY ORS. VERSUS UNION OF INDIA ORS. [ 2022 (7) TMI 1316 - SUPREME COURT] and the materials on record in the present case, it is clear that the present cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys, Maligaon and on that basis the Central Bureau of Investigation, ACO, Guwahati registered a case vide FIR No. 0172009A001 dated 20.01.2009 against 6 (Six) accused persons including the opposite party under Sections 120B, 409, 467, 471 of IPC and Section 13(2) read with 13(1)(c) (d) of Prevention of Corruption Act 1988 for fraudulent encashment of Railway cheques against the accused persons. 4. The C.B.I., ACB, Guwahati submitted Charge sheet No. RC 0172009 A0001 (RC-1 (A) 2009- GWH) dt 25.09.2010 before the Ld. Court of 3rd Spl Judge (CBI), Bankshall, Kolkata on 25.09.2010 and forwarded a copy of the charge sheet issued against the accused persons to the Assistant Director, Directorate of Enforcement, Sub-Zonal Office, Guwahati vide letter dated 07.02.2011. 5. An investigation was then launched under the Prevention of Money Laundering Act by the Guwahati Sub-Zonal office of the Enforcement Directorate and an Enforcement Case Information Report (ECIR) bearing no. ECIR/03/2009/GAU/PMLA considering the fact that the offences under Sections 120B, 420, 467, 471 of the Indian Penal Code and Section 13 of the Prevention of Corruption Act 1988 are scheduled offence as mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objection against the discharge application stating the reasons therein. 11. The Ld Special (C.B.I.) Court No. 3 being the Spl Court PMLA, Calcutta while passing the impugned Order dated 03.10.2019 has observed that:- . in so far allegation against Raj Gopal Kankani is concerned, I find that it is the admission of the prosecution that he has been made approver in the CBI case. No doubt that CBI case is the base point of the present case when in the original case from which the present case has been initiated and where the accused Raj Gopal Kankani has been made approver in the earlier case, rather when the prosecuting agency took help of the present accused to prove the CBI case, the E.D. should not implicate him as an accused of the present case . 12. The Ld. Special Court relying upon G.K Ralhan -Vs- State of Delhi, as well as State of Delhi -Vs- Jagjit Sing has observed that:- When the accused Raj Gopal Kankani has been made approver in CBI Case by the prosecuting agency and the present case has been initiated from the charge sheet of CBI case and as the present case is a Complaint under Section 45 of the PMLA Act, the accused Sri Raj Gopal Kankani should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 612796 (Rs. 4,80,000) on 30.10.2008. 20. The Spl Court also failed to consider that the accused was being investigated pursuant to filling of ECIR/05/kol/PMLA/2011 dated 23.05.2011 by the E.D. against all 7 (Seven) accused including Sri Raj Gopal Kankani and the Ld Court has taken cognizance against each and all accused persons and as such, all accused persons ought to be tried under the PMLA. Mere declaration of becoming an approver in CBI cases does not indicate that of he should make such true disclosure of facts which would be helpful for prosecution in E.D. case. 21. That Sri Kankani admitted his fraudulent act of encashment of Railway Cheques in his statement under Sections 50 of PMLA before the Assistant Director, Enforcement Directorate on 13.08.2013. FINDINGS:- 22. Section 3 of PMLA enumerates that:- whosoever directly or indirectly attempts to indulge or knowingly assist or knowingly is a party or is actually involve in any process of activity connected (Proceeds of Crime including concealment, possession, acquisition, or use or projecting or claiming) untainted property shall be guilty of an offence under money laundering. Section 4 of PML ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far the allegation against Raj Gopal Kankani is concerned I find that it is the admission of the prosecution that he has been made approver in the CBI case. No doubt the CBI case is the base point of the proceeding of the present case. When in the original case from which the present case has been initiated and where the accused Raj Gopal Kankani has been made approver of the earlier case rather when the prosecuting agency took help the present accused to prove the CBI case, the E.D should not implicate him as an accused of the present case. Going through the reported case G.K. Ralhan -Vs- State of Delhi, 1984 Cr.L.J page 1538 as well as State of Delhi -Vs-Jagjit Singh, AIR 1989 SC page 598 I find that the Hon'ble Court has opined that the subject matter of two proceeding one the Police Case and another the complaint case being the same, recipient of pardon in Police report case can be treated as approver in a complaint case. If that be the position when the accused Raj Gopal Kankani has been made approver in CBI case by the prosecuting agency and the present case has been initiated from the charge sheet of CBI case and the present case is a complaint case u/s 45 of PML Act, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undering. This offence otherwise has nothing to do with the criminal activity relating to a scheduled offence except the proceeds of crime derived or obtained as a result of that crime. 467. In light of the above analysis, we now proceed to summarise our conclusion on seminal points in issue in the following terms: (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , make over the case to the Chief Judicial Magistrate who shall try the case himself. 29. The case herein is pending before the learned Special Judge. 30. Section 132 of the Evidence Act, lays down:- 132. Witness not excused from answering on ground that answer will criminate.- A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind: Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer. 31. In R. Dineshkumar @ Deena vs State Rep. by Inspector of Police Ors., in Criminal Appeal No. 454 of 2015 (arising out of SLP (Criminal) No. 9928 of 2014), on 16 March, 2015, the Supreme Court held:- 55. In the light of the above two decisions, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved or obtained as a result of that crime and has nothing to do with the criminal activity relating to a scheduled offence. 34. Paragraph 467(v)(d) in Vijay Madanlal Choudhary Ors. vs Union of India Ors. (Supra) relied upon by the petitioner is very relevant:- 467. In light of the above analysis, we now proceed to summarise our conclusion on seminal points in issue in the following terms: (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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to compelled testimony falling within the sweep of Section 132 of the Evidence Act and thus, he is protected by the proviso to Section 132 of the Evidence Act. (emphasis supplied) 32. The learned counsel for the appellant argued that PW64 is not entitled to the benefit of the immunity provided under the proviso to Section 132 of the Evidence Act as such evidence of PW64 is evidence voluntarily given by him before the Court and not evidence which PW64 was compelled to give . The learned counsel submitted that having regard to the language of the proviso, it is only those answers (whose content is incriminatory) which a witness is compelled to give that cannot be proved against such witness in any criminal proceeding. But, if such incriminatory statements are made by a witness at the trial of a civil or criminal proceeding voluntarily without there being any compulsion, then the protection under the proviso to Section 132 is not available to such a person. The learned counsel placed heavy reliance on a decision in the case of The Queen v. Gopal Doss Another, ILR 3 Mad. 271 and other judgments of the various High Courts which either followed or are in tune with Gopal D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at they are prevented from understanding the questions put to them for reasons indicated in that section. Under Section 132 a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any criminal proceeding (among others) upon the ground that the answer to such question will incriminate or may tend directly or indirectly to expose him to a penalty or forfeiture of any kind. The safeguard to this compulsion is that no such answer which the witness is compelled to give exposes him to any arrest or prosecution or can it be proved against him in any criminal proceeding except a prosecution for giving false evidence by such answer. In other words, if the customs authorities treated Ethyl Wong as a witness and produced her in court, Ethyl Wong was bound to answer all questions and could not be prosecuted for her answers. Mr. Jethmalani's argument that the Magistrate should have promptly put her in the dock because of her incriminating answers overlooks Section 132 (proviso). In India the privilege of refusing to answer has been removed so that temptation to tell a lie may be avoided but it was necessary to give this protection. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than an accused in a criminal case. 44. The sweep of Article 20 fell for consideration of this Court in Nandini Satpathy v. P.L. Dani Another, (1978) 2 SCC 424. Justice V.R. Krishna Iyer spoke for the bench. (i) It was a case where a crime under the Prevention of Corruption Act and certain other offences under the Indian Penal Code came to be registered against Nandini Satpathy, former Chief Minister of Orissa. (ii) This Court examined the scheme of Article 20(3) and Section 161(2) and opined that ..... we are inclined to the view, terminological expansion apart, the Section 161(2) of the CrPC is a parliamentary gloss on the constitutional clause . This Court also recognised that protection afforded by Section 161(2) is wider than the protection afforded by Article 20(3) in some respects. ...The learned Advocate General, influenced by American decisions rightly agreed that in expression Section 161(2) of the Code might cover not merely accusations already registered in police stations but those which are likely to be the basis for exposing a person to a criminal charge. Indeed, this wider construction, if applicable to Article 20(3), approximates the constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 46. Section 132 existed on the statute book from 1872 i.e. for 78 years prior to the advent of the guarantee under Article 20 of the Constitution of India. As pointed out by Justice Muttusami Ayyar in Gopal Doss (supra), the policy under Section 132 appears to be to secure the evidence from whatever sources it is available for doing justice in a case brought before the Court. In the process of securing such evidence, if a witness who is under obligation to state the truth because of the Oath taken by him makes any statement which will criminate or tend to expose such a witness to a penalty or forfeiture of any kind etc. , the proviso grants immunity to such a witness by declaring that no such answer given by the witness shall subject him to any arrest or prosecution or be proved against him in any criminal proceeding . We are in complete agreement with the view of Justice Ayyar on the interpretation of Section 132 of the Evidence Act. 47. The proviso to Section 132 of the Evidence Act is a facet of the rule against self incrimination and the same is statutory immunity against self incrimination which deserves the most liberal construction. Therefore, no prosecution ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n crime, is a different matter. Prosecution can enter Nolle proseque against any accused-person. It can seek to withdraw a charge against an accused person. These propositions are too well settled to require any further elaboration. Suffice it to say that the matter is concluded by the pronouncement of this Court in Laxmipat Choraria v. State of Maharashtra: 1968CriLJ1124 where Hidayathullah J referred to the argument that the accomplice, a certain Ethyl Wong in that case, had also to be arrayed as an accused and repelled it, observing: Mr. Jethmalani's argument that the Magistrate should have promptly put her in the dock because of her incriminating answers overlooks Section 132 (proviso). ...The prosecution was not bound to prosecute her, if they thought that her evidence was necessary to break a smugglers' ring. Ethyl Wong was protected by Section 132 (proviso) of the Indian Evidence Act even if she gave evidence incriminating herself. She was a competent witness although her evidence could only be received with the caution necessary in all accomplice evidence. 134. On this point, really, appellant cannot be heard to complain. Of the so called co-conspirat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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